United States v. Walker ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4929
MARY ANN WALKER, a/k/a Mary
Ann Waldrum,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-96-14)
Submitted: January 6, 1998
Decided: January 26, 1998
Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robin M. Crum, Moundsville, West Virginia, for Appellant. William
D. Wilmoth, United States Attorney, Lisa Grimes Johnston, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Mary Ann Walker pled guilty to distributing crack cocaine within
1000 feet of a playground in violation of 21 U.S.C.A. §§ 841(a)(1),
860 (West 1994 & Supp. 1997). The district court sentenced her to
forty-one months imprisonment to be followed by five years of super-
vised release. Walker appeals her sentence, contending that the dis-
trict court erred by enhancing her base offense level under USSG
§ 2D1.2(a)(3).* She also asserts that even assuming the court did not
err in applying USSG § 2D1.2, she did not intentionally or knowingly
"involve" a person under the age of eighteen in the drug offense, as
required by § 860(c). Finding no error, we affirm.
I.
A drug task force investigated the distribution of crack cocaine in
Grandview Manor, an apartment complex located within 1000 feet of
a playground, and sent a confidential informant to buy crack at the
apartment rented to Yvette Smith. When the informant knocked on
the door, Walker answered. The informant said that she was looking
for a "hundred," and Walker told the informant to wait. Walker left
the apartment and returned with Smith's fifteen-year-old son, who
retrieved a plastic bag containing crack cocaine from under the sofa
and gave the bag to Walker who, in turn, gave it to the informant. The
informant handed Walker $100 for the crack cocaine, and Walker
gave the money to the juvenile.
After the district court accepted Walker's guilty plea, the probation
officer prepared a presentence report and recommended a base
offense level of twenty-six under USSG § 2D1.2(a)(3) because the
offense involved a person under the age of eighteen. Walker objected,
_________________________________________________________________
*U.S. SENTENCING GUIDELINES MANUAL (1995).
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contending that under USSG § 2D1.2(a)(1), her base offense level
should be sixteen because she did not knowingly employ a person
under the age of eighteen. The court overruled Walker's objection,
established Walker's base offense level at twenty-six, awarded a
three-level reduction for acceptance of responsibility under USSG
§ 3E1.1, and applied a two-level downward departure for diminished
capacity under USSG § 5K2.13, for a total offense level of twenty-
one. With a criminal history category of II, the applicable sentencing
range was forty-one to fifty-one months. The court sentenced Walker
to forty-one months imprisonment and a five-year supervised release
term. Walker timely appeals.
II.
On appeal, Walker claims that the district court erred in establish-
ing her base offense level at twenty-six under USSG§ 2D1.2(a)(3).
Factual findings made by the district court in connection with the
application of an enhancement under the sentencing guidelines are
reviewed for clear error, while issues of law are subject to de novo
review. See United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996).
Specifically, Walker asserts that the district court should not have
enhanced her base offense level under USSG § 2D1.2(a)(3) because
the indictment did not allege the involvement of a person under the
age of eighteen nor was she convicted of using or employing a minor
to distribute drugs in violation of § 860(c) or 21 U.S.C.A. § 861(West Supp. 1997). Although Walker relies on United States v.
Locklear, 24 F.3d 641 (4th Cir. 1994), her reliance is misplaced.
In Locklear, one defendant was convicted of conspiracy to distrib-
ute cocaine and marijuana in violation of 21 U.S.C.§§ 841, 846. See
24 F.3d at 643-44. The district court increased that defendant's base
offense level under USSG § 2D1.2 for use of a juvenile in the con-
spiracy. Id. at 647. We vacated the defendant's sentence, id. at 649,
finding that "[USSG §] 2D1.2 is intended not to identify a specific
offense characteristic which would . . . increase the offense level over
the base level assigned by [§] 2D1.1, but rather to define the base
offense level for violations of 21 U.S.C. §§ 859, 860, 861." Id. at 648.
Although Walker--like the defendant in Locklear--was convicted
of distributing crack cocaine under § 841, the cases differ in one
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important respect. Walker distributed the crack cocaine within 1000
feet of a playground--a violation of § 860, one of the statutory provi-
sions to which USSG § 2D1.2 applies. Section 2D1.2, entitled "Drug
Offenses Occurring Near Protected Locations or Involving Underage
or Pregnant Individuals; Attempt or Conspiracy," therefore is the
"guideline section . . . most applicable to the offense of conviction
(i.e., the offense conduct charged in the . . . indictment of which the
defendant was convicted)." USSG § 1B1.2(a). Where, as in USSG
§ 2D1.2, there is more than one base offense level, courts determine
the applicable base offense level using the relevant conduct provi-
sions of USSG § 1B1.3. See USSG § 1B1.2(b) & comment. (n.2). We
find that in establishing a base offense level of twenty-six under
USSG § 2D1.2(a)(3), the district court properly considered that
Walker left the apartment to find the fifteen-year-old juvenile, who
retrieved the crack cocaine that was sold to the informant.
Walker also urges this court to read into USSG § 2D1.2(a)(3) the
statutory requirements of § 860(c) by defining"involve" as "employs,
hires, uses, persuades, induces, entices, or coerces a person under 18
years of age to violate [§ 860]" and by requiring that she "knowingly
and intentionally" involved a juvenile in the offense. 21 U.S.C.A.
§ 860(c). We decline to do so. The plain language of the guideline
states that a base offense level of twenty-six is warranted "if the
offense involved a person less than eighteen years of age." USSG
§ 2D1.2(a)(3). Walker clearly satisfies the guideline's requirements
because she brought the juvenile to the apartment to retrieve the drugs
for the informant.
Accordingly, we affirm Walker's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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